Spesia & Taylor Partner John Spesia & Associate Tyler Moore recently filed a lawsuit against a suspected drunk driver for causing the wrongful death of a Joliet family’s unborn child. The wrongful death lawsuit was brought on behalf of the beneficiaries of the child’s estate, under the Illinois Wrongful Death Act (the “Act”). Prior to the Illinois’ legislature adopting the Act in 1853, Illinois’ common law did not recognize a cause of action that could be brought by a family of a deceased person killed by a negligent actor.
The Wrongful Death Act provides a mechanism by which Illinois’ families can recover for the death of a family member. This article is intended to provide an overview of the Illinois’ Wrongful Death Act, who can bring suit and the type of damages that may be recovered.
Who can bring a Wrongful Death lawsuit?
The Act provides a cause of action that allows a deceased person’s spouse or next of kin to sue on behalf of the deceased’s estate where the deceased died as a result of the negligence of a third party. A wrongful death claim is not the same as a survivorship claim, which is brought on behalf of the deceased person after their death to recover for their suffering before they died; rather, a wrongful death claim is designed to compensate decedent’s relatives for the loss of their loved one.
What compensation can be recovered under the Act?
The Act allows for the beneficiaries of the deceased’s estate to obtain “fair and just compensation” for their loss. The beneficiaries can seek damages for “pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering.” 740 ILCS 180/2(a). In determining the pecuniary loss, a jury may consider what money, benefits, goods, and services the decedent customarily contributed in the past or was likely to have contributed in the future. See IPI 31.01-31.06.
The Wrongful Death Act also provides a cause of action to seek compensation on behalf of the beneficiaries for the loss of an unborn child. See Smith v. Mercy Hosp. & Medical Center, 203 Ill. App. 3d 465 (1990); see also 740 ILCS 180/2.2. Moreover, Illinois courts have held that a rebuttable presumption for the parents’ loss of society exists for the wrongful death of their stillborn child. Seef v. Sutkus, 145 Ill. 2d 336 (1991). In other words, it is presumed that the parents of an unborn child sustain a pecuniary loss where the child dies as a result of another’s negligence.
How long do I have to bring a Wrongful Death lawsuit?
740 ILCS 180/2(d) provides that Wrongful Death claims “shall be commenced within 2 years after the death . . . [e]xcept as otherwise provided . . . .” There may be other factors that affect the time period in which you must file a lawsuit, so it is important you contact an experienced wrongful death attorney if you have any questions.
How does contributory fault affect the beneficiaries’ right to recover?
In some cases, a beneficiary of the decedent may be found responsible for the wrongful death. In those circumstances, the Act provides that the amount of damages shall be reduced as set forth in the statute. The Act states that “it is not a defense that the death was caused in whole or in part by the contributory negligence of one or more of the beneficiaries on behalf of whom the action is brought, but the amount of damages given shall be reduced…” 740 ILCS 180/2(g).
Simply put, if a beneficiary is found partially at fault for the death, the Act provides that the other beneficiaries’ recoveries are not affected. Rather, if the contributorily negligent beneficiary is found less than 50% of the proximate cause of the wrongful death of the decedent, the recovery of the beneficiary is diminished in the same proportion of fault. If the contributorily negligent beneficiary is found greater than 50% of the proximate cause of the wrongful death of the decedent, that beneficiary is barred from recovery. 740 ILCS 180/2(h).
By: Tyler Moore